Resek v. State, S-205

• Decision Date: 30 August 1985
• Docket Number: No. S-205,S-205
• Citation: 706 P.2d 288
• Parties: Alexander N. RESEK, Sr., Petitioner, v. STATE of Alaska, Respondent.
• Court: Alaska Supreme Court

Page 288

706 P.2d 288

Alexander N. RESEK, Sr., Petitioner, v. STATE of Alaska, Respondent.

No. S-205.

Supreme Court of Alaska.

Aug. 30, 1985.

Rehearing Granted in Part and Opinion Amended Oct. 2 and

Oct. 15, 1985.

Daniel E. Winfree, Perkins, Coie, Stone, Olsen & Williams, Anchorage, for petitioner.

David Mannheimer, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for respondent.

OPINION

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

RABINOWITZ, Chief Justice.

This petition presents the question of whether an indigent claimant has a constitutional right to appointed counsel at public expense in an in rem forfeiture proceeding. We hold that such an action is not a "criminal prosecution" within the meaning of Article 1, Section 11 of the Alaska Constitution, which provides that "[i]n all criminal prosecutions, the accused shall have the right to ... have the assistance of counsel for his defense." However, we recognize the potential for unfairness when the forfeiture action precedes a criminal prosecution, and thus we further conclude that in certain cases the trial court in its discretion may require that an appointment of counsel be made.

INTRODUCTION

Petitioner Alexander N. Resek, Sr. was indicted by an Anchorage grand jury on one count of misconduct involving a controlled substance in the first degree, in violation of AS 11.71.010(a)(3), ¹ and 46 counts of misconduct involving a controlled substance in the third degree, in violation of AS 11.71.030(a)(1). ²

Alaska Statute 17.30.112(a) provides that:

Property listed in AS 17.30.110 may be forfeited to the state either upon conviction of the defendant of a violation of this chapter or AS 11.71, or upon judgment of a court in a separate civil proceeding in rem. The court may order a forfeiture in the in rem proceeding if it finds that an item specified in AS 17.30.110 was used during or in aid of a violation of this chapter or AS 11.71.

Approximately two weeks after Resek was indicted, the state initiated four in rem forfeiture proceedings against property in which Resek claimed an ownership interest. AS 17.30.110 provides for the forfeiture of various types of property used or intended for use in connection with a felony violation of the state drug laws. ³ The statute reaches actual contraband, profits from the illegal activity, and assets that, though acquired legitimately, were associated with the commission of the crime. The property at issue here can be classified under subsection (4) of that statute, which allows for the forfeiture of conveyances, and subsection (6), which allows for the forfeiture of proceeds from illegal drug transactions. The items include five automobiles, 35 ivory carvings, and approximately $16,500 in jewelry and cash.

Resek, claiming to be indigent, moved for court-appointed counsel in the four forfeiture proceedings. ⁴ In one action his motion was granted; in the other three the motion was denied, with one superior court judge commenting that "this represents a civil action, not a criminal action...." We granted Resek's petition to review two of the denials. ⁵

I.

Forfeiture laws have often been criticized as being harsh and inflexible, ⁶ yet they have survived numerous constitutional challenges. At common law in England, traitors and felons automatically forfeited all their real and personal property to the Crown. Since those convicted of such crimes were generally executed, the forfeiture penalty was felt most severely by the offender's heirs. ⁷ After obtaining its independence, the United States repudiated this practice of "forfeiture of estate," and turned increasingly to the use of in rem forfeiture proceedings, which focus not on the criminal, but instead on the property used in connection with the criminal activity. It is the property that is proceeded against and, by resort to a legal fiction, held guilty and condemned as though it were conscious and capable of forming criminal intent. Presently, these laws are widespread and reach virtually any type of property that might be used in the conduct of a criminal enterprise. ⁸

The statutory scheme at issue here is typical of modern day forfeiture and has many features commonly associated with civil proceedings. The state may seize the property and take it into custody upon a probable cause showing that the property is subject to forfeiture. AS 17.30.114. If, after publication and notice, no one claims an interest in the property, the items are ordered forfeited without any further proceedings. AS 17.30.116(b). In the event a claimant does appear, a trial is held before the court, sitting without a jury. AS 17.30.116(c). The government bears the initial burden of demonstrating probable cause for the seizure. If the government satisfies its burden, the property owner must establish, by a preponderance of the evidence, that the property is not forfeitable. ⁹

This court has previously recognized the fictional nature of the notion of "guilty chattel" and concluded that the due process clause places limits on the scope of the forfeiture action. In State v. Rice, 626 P.2d 104 (Alaska 1981), the issue was whether the state could acquire through forfeiture an airplane used to transport illegally taken game, even though the owner was not a participant in the criminal enterprise. We reviewed the various purposes underlying forfeiture and concluded that none is served when the property owner is an "innocent non-negligent third party." Id. at 114. This constitutional restriction is expressly recognized in AS 17.30.110(4)(A), which provides for the remission of seized conveyances if the owner can establish that the felony was committed by another person and that the owner was neither a consenting party nor privy to the violation.

Section 11 of Article 1 of the Alaska Constitution guarantees numerous rights to the accused in a criminal prosecution, including the right to the assistance of counsel at public expense if the accused cannot afford counsel. ¹⁰ This court has defined "criminal prosecution," as that term is used in Article 1, as including (1) offenses for which a direct penalty may be incarceration, (2) offenses which may result in the loss of a valuable license, and (3) offenses for which the fine imposed is heavy enough to indicate criminality, because such a fine could be taken as a gauge of the ethical and social judgments of the community. ¹¹ Baker v. City of Fairbanks, 471 P.2d 386, 402 and n. 29 (Alaska 1970). Although Baker concerned the right to jury trial, we held in Alexander v. City of Anchorage, 490 P.2d 910, 913 (Alaska 1971), that there is no justifiable reason for defining "criminal prosecution" any differently when referring to the right to counsel.

A claimant in a forfeiture action does not face loss of liberty as a direct result of the forfeiture action, nor does he face loss of a valuable license. The issue then is narrowed to whether forfeiture is equivalent to the imposition of a fine so heavy that it indicates criminality. This issue is really one of legislative intent, and we conclude that the nature of the forfeiture penalty clearly indicates that it was intended as a civil, not a criminal, sanction. ¹²

The statute would not encompass such a broad range of conduct if the legislature were concerned only with providing a criminal penalty. As stated previously, property may be forfeited even if the owner is not criminally culpable for the illegal use to which the property has been put. Under Rice, property may be forfeited if the owner merely facilitated the crime, however passively, as long as he had reason to know of its commission. By contrast, a person cannot be convicted as an accomplice to a crime without a showing that he intentionally encouraged or assisted in the crime. ¹³

Further, the forfeiture law does not attempt to tailor the amount of loss suffered through a forfeiture to the degree of culpability--to fit the "punishment" to the crime. The forfeiture penalty may be high for some, and negligible or nonexistent for others who are as deserving or even more deserving of criminal punishment. ¹⁴

We recognize that application of the forfeiture laws can result in severe loss to a property owner, and that there clearly is a punitive component to the forfeiture laws. ¹⁵ Nonetheless, the absence of any correlation between the culpability of the property owner and the size of the penalty indicates that the legislature had additional aims in mind. In Graybill v. State, 545 P.2d 629 (Alaska 1976) this court recognized the strong deterrent aspect of the forfeiture laws. As the United States Supreme Court reasoned in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 688, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452, 471 (1974), to the extent that forfeiture provisions apply to those who are not guilty of a criminal offense, "confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property."

Federal courts interpreting the forfeiture law, 21 U.S.C. § 881 (1981), the model for Alaska's statute, have also concluded that such an action is not so punitive in either purpose or effect as to negate the Congressional preference for the civil label. In United States v. $2,500 in United States Currency, 689 F.2d 10 (2nd Cir.1982), the claimant argued that forfeiture under 21 U.S.C. § 881 constitutes criminal punishment and thus due process is violated by placing the burden of proof upon the owner once probable cause has been established. The court noted the many legitimate remedial, non-punitive purposes:

These include impeding the success of the criminal enterprise by eliminating its resources and instrumentalities, diminishing the efficiency and profitability of the business by increasing the costs and risks associated with it, and helping to finance the government's efforts to combat drug trafficking.

Id. at 13. See also Kane v....